Biopiracy and Native Title: An Exploration of the Native Title Act 1993 (Cth) and Indigenous Knowledge Protection

Abstract

The exploitation of Indigenous Knowledge is pervasive and widespread. Despite its significance and value however, the current legal frameworks available for its protection fail to offer a comprehensive regime which fundamentally accommodates for the unique characteristics that underlie Indigenous Knowledge. This thesis critically examines the protective frameworks currently available in Australia for Aboriginal and Torres Strait Islander Peoples’ Knowledge of plant-based biological resources and traditional medicine, mainly environmental laws, intellectual property rights, and human rights. Although their inadequacy has been continually demonstrated, regulatory research in Australia has primarily focused on recommending developments to the current frameworks available, disregarding the unique characteristics and fundamental principles of the knowledge they seek to protect. This thesis aims to fill the gap in the research concerning the protection of Indigenous Knowledge systems through an exploration of the Native Title Act 1993 (Cth) and the feasibility of incorporating Indigenous Knowledge protection within its scope, justified by the interconnected and land-related nature of Knowledge and Indigenous ways of life. The analysis is framed around the definition of native title contained in s 223(1) of the Native Title Act 1993 (Cth) and draws from jurisprudential interpretations to determine whether it could encompass, and therefore protect, Indigenous Knowledge pertaining to plant-based biological resources and traditional medicine specifically. Through case study application, this thesis illustrates and concludes that the s 223(1) native title definition has the scope to protect Indigenous Knowledge of plant-based biological resources. While the success of applying this conclusion in practice remains severely limited given the inequality and imbalance of power amongst Indigenous Peoples and ‘settler’ Australians that still permeates the legal context and Australian society more widely, recent developments in this space indicate a growing social and political demand for much needed change which may act as the vehicle through which to grant Indigenous Peoples rights to their knowledge under the native title framework.